Karnataka High Court
Shivappa S/O Fakirappa Chalavadi vs Smt. Sarsawati W/O. Lakshman Chalavadi on 15 January, 2025
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RSA No. 100016 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100016 OF 2022 (DEC/INJ-)
BETWEEN:
SHIVAPPA S/O. FAKIRAPPA CHALAVADI,
A/A. 31 YEARS,
OCC. COOLIE,
R/O. AMBEDKAR ONI,
HULAGUR
TQ. SHIGGAVA,
DIST. HAVERI.
PIN CODE. 581205.
...APPELLANT
(BY SRI. S. M. KALWAD, ADVOCATE)
AND:
1. SMT. SARSAWATI
W/O. LAKSHMAN CHALAVADI
A/A. 36 YEARS,
VN OCC. COOLIE,
BADIGER R/O. BHU. TARLAGHATTAKOPPA,
TQ. KUNDAGOL,
Digitally signed DIST. DHARWAD,
by V N
BADIGER NOW AT HULAGUR,
Date: TQ. SHIGGAVA,
2025.01.20
11:01:13 +0530 DIST. HAVERI.
PIN CODE - 581205.
2. SMT. LAXMAVVA
W/O. FAKKIRAPPA CHALAVADI,
A/A. 33 YEARS,
OCC. COOLIE,
R/O. KOLIWAD,
TQ. HUBBALLI,
DIST. DHARWAD
PIN CODE - 580028.
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NC: 2025:KHC-D:605
RSA No. 100016 of 2022
3. SMT. YALLAVVA
W/O. KALLAPPA CHALAVADI,
A/A. 31 YEARS,
OCC. COOLIE,
R/O. KOLIWAD,
TQ. HUBBALLI,
DIST. DHARWAD.
PIN CODE - 580028.
...RESPONDENTS
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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 05.01.2021 MADE
IN R.A.NO.50/2017 PASSED BY THE COURT OF SENIOR CIVIL JUDGE
& JMFC., SHIGGAON AND THEREBY CONFIRMING THE JUDGMENT
AND DECREE DATED 04.10.2017 MADE IN O.S.NO.214/2012 PASSED
BY THE COURT OF CIVIL JUDGE & JMFC., SHIGGAON, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the plaintiff, challenging
the judgment and decree dated 05.01.2021 passed in
RA No.50 of 2017 (Old RA No.100 of 2015) on the file
of the Senior Civil judge and JMFC Shiggaon,
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dismissing the appeal and confirming the judgment
and decree dated 04.10.2017 passed in OS No.214 of
2012 on the file of the Civil Judge and JMFC,
Shiggaon, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that the suit schedule
property belongs to one Nagappa Bharamappa
Chalavadi, and the said property was granted to him
by the Government. Smt. Basavannemma is the wife
of Nagappa Bharamppa Chalavadi and they had three
daughters (defendants). The plaintiff is son of brother
of Nagappa Bharamappa Chalavadi. It is the case of
the plaintiff that, the plaintiff was looking after the
said Nagappa Bharamppa Chalavadi during his life
time and as such, said Nagappa Bharamppa Chalavadi
has executed Will dated 21.04.1995 in the presence of
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defendants and witnesses and he died on 18.11.1995
leaving behind the defendants and plaintiff as his legal
representatives. It is further stated in the plaint that,
the defendants without the knowledge of the plaintiff,
have changed the revenue records of the suit schedule
property and feeling aggrieved by the act of the
defendants, the plaintiff has filed OS No.214 of 2012,
seeking relief of declaration with consequential relief
of perpetual injunction.
4. After service of summons, the defendants
entered appearance and filed detailed written
statement denying the averments made in the plaint.
It is the specific case of the defendants that the Will
dated 21.04.1995 is created to knock off the suit
schedule property and accordingly, sought for
dismissal of the suit.
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5. On the basis of the rival pleadings, the trial Court
has formulated issues for its consideration.
6. In order to establish the case, their plaintiff
examined two witnesses as PW1 and PW2 and got
marked 08 documents as Exs.P1 to P8. On the other
hand, defendants have examined one witness as DW1
and produced 09 documents as Exs.D1 to D9.
7. The trial Court, after considering the material on
record, by its judgment and decree dated 04.10.2017,
dismissed the suit of the plaintiff and being aggrieved
by the same, the plaintiff has preferred Regular
Appeal in RA No.100 of 2015 on the file of First
Appellate Court and same was renumbered as RA
No.50 of 2017. The said appeal was resisted by the
defendants. The First Appellate Court, after re-
appreciating the facts on record, by its judgment and
decree dated 05.01.2021 dismissed the appeal and
confirmed the judgment and decree passed by the
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trial Court in OS No.214 of 2012. Being aggrieved by
same, the plaintiff/appellant has preferred this Regular
Second Appeal under Section 100 of CPC.
8. I have heard Sri S.M.Koliwad, learned counsel for
the appellant.
9. Sri S.M. Koliwad, learned counsel for the
appellant submits that, the reasons assigned by both
the courts below requires to be interfered with in this
appeal, despite the fact that, the plaintiff has
produced the Will at Ex.P1 to support his case and
therefore, sought for interference of this Court. He
also submitted that, the plaintiff is in possession of the
suit schedule property. Accordingly, he sought for
allowing the appeal.
10. In the light of the submission made by the
learned counsel for the appellant and perusal of the
appeal papers, it is relevant to cite the judgment of
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the Hon'ble Supreme Court in the case of H.
Venkatachala Iyengar vs B. N. Thimmajamma &
Others reported in AIR 1959 SC 443 has laid down
the guidelines to prove the Will. It is also to be noted
that, as per Section 68 of the Indian Evidence Act, it is
the duty of the propounder of the Will to prove the
Will by examining one of the attesting witnesses to the
Will. On careful examination of the finding recorded by
both the courts below, the plaintiff has not taken steps
to examine the witnesses to the Will as required under
Section 68 of the Indian evidence Act. Therefore, I am
of the opinion that, both the courts below have
concurrently held that, the plaintiff has failed to prove
the Will in a manner known to law. In this regard, it is
relevant to cite the judgment of the Hon'ble Supreme
Court in the case of Murthy and Others vs. C.
Saradambal and others reported in (2022) 3 SCC
209, wherein in paragraphs 49 to 51 reads as under:
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49. Apart from that, Section 63(c) of the Indian
Succession Act, 1925, firstly states that the will has to
be attested by two or more witnesses/attestators,
each of whom should have seen the testator sign on
the will in his presence, or has received from the
testator, a personal acknowledgment of his signature
on the will. Secondly, each of the witnesses shall sign
on the will in the presence of the testator but it shall
not be necessary that more than one witness be
present at the same time, and no particular form of
attestation is necessary. The aforesaid two mandatory
requirements have to be complied with for a
testament to be valid from the point of view of its
execution.
50. In the instant case, there are two attestors
namely, PW2-Varadan and Dakshinmurthy and the
latter had died. The evidence on record has to be as
per Section 68 of the Indian Evidence Act, 1872 which
deals with proof of documents which mandate
attestation. In order to prove the execution of the
document such as a testament, at least one of the
attesting witnesses who had attested the same must
be called to give evidence for the purpose of proof of
its execution. Since one of the attestors, namely,
Dakshinmurthy had died, PW2, Varadan had given his
evidence as one of the attestors of the will. However,
the deposition of PW2 is such that it is fatal to the
case of the plaintiffs.
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51. The evidence of PW2 could be highlighted as
under:
51.1. He was a friend of the testator and he was
frequently visiting the testator once in two or three
days.
51.2. He signed as the first attesting witness on Ex-P1
and Dakshinmurthy signed as second attesting witness
and the testator saw both the attestors signing Ex-P1.
However, he has deposed that it was not possible to
take the testator to the Registrar's office for
registering the will as the testator was not in a sound
condition and he was very seriously ill, he was
suffering from paralysis.
51.3. He has admitted that testator was suffering
from paralysis of right hand and right leg and prior to
his death, was sick for about 10 months and was
confined to his house and not in a position to write.
51.4. PW2 has also stated that he had not disclosed
about the will to S. Damodaran, the son of the
testator and during his lifetime, S. Damodaran was
unaware of the will executed by his father.
51.5. S. Damodaran, (who was a practicing advocate)
lived for about eleven years after the execution of will
(Ex-P1) and since he was unaware of the will
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executed by his father, he did not take steps to seek
probate of the will.
51.6. He has also admitted that he signed the affidavit
in the suit on the instructions and as requested by the
counsel.
11. Following the declaration of law made by the
Hon'ble Supreme Court in the said judgment, I do not
find material irregularity or perversity in the
judgments and decree passed by the Courts below
and accordingly, the Regular Second Appeal is liable to
be dismissed. Since, the plaintiff/appellant has not
made out a ground for formulation of substantial
question of law as required under Section 100 of Code
of Civil Procedure, the Regular Second Appeal is
dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
